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Article – Possession Claims – Why you should always rely on section 8 as well as section 21 during a pandemic.

Graeme Kirk explains the recent decision of Master Dagnall and the wide-ranging issues it raises in the area of housing law.


This eye-catching decision of Master Dagnall raises wide-ranging issues which include Covid-issues and many others in the area of housing law. It raised issues of notice to end tenancies, the form of possession orders, transfer to the High Court for enforcement, the effects of the pandemic on enforcement, human rights law and legislative interpretation.

In November 2018. Mr Prescott and Ms Byrne rented a townhouse in Merrick Square, Southwark, from the Corporation of Trinity House (‘the Corporation’), under a written Assured Shorthold Tenancy agreement. They lived there, as (at the time of writing) they presumably continue to do, with their three young children and possibly another elderly relative.

The tenants fell into arrears of rent and, in August 2019, were served notices under both sections 21 and 8 of the Housing Act 1988. As is well known, section 21 is the so-called ‘no fault’ route to possession, which compels the court to order possession if the conditions for a claim have been complied with. Section 8, however, requires the court to establish that one of the statutory grounds for possession have been established; then, depending on the ground, the court is either mandated to order possession or has a discretion to do so where it considers it reasonable.

When the Corporation issued its claim for possession after the notice periods had expired, it referred only to the section 21 notice on the basis that, if the court ordered possession, it need not trouble itself with the statutory grounds under section 8. However it then issued an application to amend its claim so that those grounds could also be included and relied upon.

The possession claim was heard in January 2020, before the many Covid-related changes in the administration of civil justice were felt. DDJ Rea granted possession on the basis of the unamended (s.21) claim and, having done so, considered it unnecessary to consider the application to amend. By then, arrears were equivalent to around eight months’ rent.

In February 2020, the Corporation applied for a warrant so that they could evict the tenants. However by the time came for it to be enforced, Covid had intervened and it could not be executed because of the emergency legislation which had been passed.

In December 2020, virtually no more rent having been paid and the possibility of enforcement having arisen, the Corporation obtained permission to transfer the matter to the High Court so that a High Court Enforcement Officer might carry out the eviction. The High Court issued the appropriate writ on 8th January 2021.

Regulations had been issued which prohibited the execution of writs/warrants of possession until 21st February 2021. At the time of writing, this has been extended until the end of March.

An exception to this ban is made where the court ‘is satisfied that the case involved substantial arrears’ and only then if the order had been partly or wholly on grounds 8, 10 or 11 of the Housing Act 1988.

By the time this matter came before the Master, over £70,000 were owed. However the underlying possession order, it will be recalled, had been made solely on the basis of a s.21 notice. On the face of it, the Corporation did not fall into the Regulatory exception. The Master also referred to the Explanatory Memorandum provided with the Regulations which emphasised that evictions were banned ‘save in the most serious circumstances’.

Master Dagnall was asked to consider an application seeking permission to issue a writ of possession, though he doubted this was quite the relief the Corporation needed. In his view, he was being asked whether the court should be satisfied that this case fell within the exceptions to the eviction ban. This raised certain procedural questions since the matter had been transferred for enforcement, however the Master was satisfied that he could potentially make such a declaration. He first afforded the tenants (with the assistance of Shelter) a short period to formulate their response.

The starting point was, on a literal reading, that the Corporation did not come within the exception because possession had not been ordered under s.8. However Counsel argued on its behalf that the exception should be read to include any case where, as here, the factual background was in fact one of substantial arrears. To reach that conclusion, she argued that s.3(1) of the Human Rights Act 1998 required the legislation to be read so as to give effect to Convention rights, including Article 1 of the First Protocol (peaceful enjoyment of possessions) as well as Article 14 (discrimination, putatively against those who had s.21 as opposed to s.8 orders). She accepted that convention rights should be balanced and that the tenants had a right to the respect for their private and family life (Article 8).

The Master was dubious as to whether this really was a Human Rights case at all, and whether the legislative framework really did require that gloss. To the extent that there may be public law issues, these were not matters that could be dealt with save by judicial review, however he considered it important to resolve the private law issues before him.

He therefore felt he was bound to consider whether a Convention right (A1P1) was engaged. He concluded that the Regulations indeed interfered with that right though he was less impressed with the discrimination argument. He then explored the question of the justification for any infringement.

Analysing the exception to the ban on evictions as he was invited to do, he concluded that the Regulations could not be read to include s.8 possession orders when only s.21 had been referred to. The Regulations had a powerful policy motivation (in the context of the pandemic) and the exceptions were narrow and specific. To read them as the Corporation wanted them to be read would not be a slight change but “a major one and not just a tinkering with a minor element”.

He continued: “The intention (and policy) underlying the Rent Exception as requiring an Order for Possession on rent-arrears grounds was clearly stated not only in the January Regulations but also in the Explanatory Note and the Explanatory Memorandum. To introduce words to change (and potentially defeat) that intention is again going too far”.

The message, then, is clear. Even when a section 8 order is not ‘needed’, in the current circumstances it would be sensible to ask the Judge to make the order expressly on every possible basis. This outcome also makes accelerated claims (CPR55 Part 2) all the less attractive since they are only available to s.21 claimants which could not be enforced under the current prohibition even where there are extreme levels of arrears.

The pandemic is throwing up some unusual challenges which will, all being well, pass soon. It is also asking the court to apply itself to questions of interpretation in extreme circumstances. Perhaps normal service will eventually be restored.

Article written by Graeme Kirk.

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